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Monday, July 16, 2018

The Tennessee Court of Appeals recently issued its opinion in Harmon v. Hickman County Health Services, Inc., No. M2016-02374-COA-R3-CV (Jun. 29, 2018). Here is a link the syllabus from that opinion:

This suit was brought by the children of a woman who died while incarcerated at
Hickman County Jail. Defendant is a contractor of the jail that provides medical services
at the jail; a nurse in Defendant’s employment treated the decedent for symptoms of drug
and alcohol withdrawal. She passed away shortly after. The children brought this suit
under the Health Care Liability Act claiming negligence and negligent hiring, retention,
and supervision. In due course, Defendant moved for summary judgment, arguing,
among other things, that there was not a genuine issue of material fact as to causation and
it was entitled to judgment as a matter of law on that element of Plaintiffs’ claim; the trial
court granted Defendant’s motion and subsequently denied a motion to revise, filed by
the Plaintiffs. This appeal followed.

NOTE: This decision can be confusing in my opinion as to the difference between a motion to revise a nonfinal, interlocutory order under Rule 54, Tenn. R. Civ. P., and a motion to alter or amend a final judgment under Rule 59, Tenn. R. Civ. P. (A perusal of this blog can help explain the difference between those two motions.)

Respectfully, I think the majority opinion got this one right; footnote 13 in that opinion is worth reading—and memorizing—in my humble opinion. This policy of resolving disputes upon their merits and not upon procedural technicalities is one that Justice (of the United States Supreme Court) Oliver Wendell Holmes, Jr. wrote about in The Common Law; that isbecause it avoids vigilantism (a "blood feud") from erupting in society. And, it helps preserve the people's right to trial by jury, which "remains inviolate" in Tennessee (as to questions of fact, like agency and the amount of damages).

This interlocutory appeal involves a health care liability action. Plaintiff gave potential
defendants written notice of his malpractice claim. See Tenn. Code Ann. § 29-26-121(c).
Plaintiff then filed his complaint. In doing so, he relied upon a 120-day extension of the
one year statute of limitations as provided for in § 29-26-121(c). Each defendant moved
to dismiss the plaintiff’s complaint. By an order entered April 1, 2015, the trial court
granted the joint motion to dismiss of three of the defendants. The court’s order
concluded that plaintiff’s complaint was time-barred. Plaintiff did not appeal the court’s
judgment and, with the passage of time, it became final. Meanwhile, the motions to
dismiss of the other defendants, all of which were essentially based upon the same
ground as that of the joint motion of the dismissed defendants, were awaiting resolution
by the trial court. Before this could happen, however, the plaintiff voluntarily dismissed
his complaint. Nine months later, plaintiff sent a new pre-suit notice. Four months after
that, plaintiff filed a second health care liability action against the same defendants,
including those dismissed by the trial court in its April 1, 2015 order. All defendants
again moved to dismiss the complaint. The trial court denied the motions. Later, the trial
court decided that its April 1, 2015 dismissal order was incorrect. It concluded that
plaintiff’s first complaint was not time-barred because, according to the court, plaintiff
provided proper pre-suit notice. On the defendants’ further motions, the court granted
them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R.
App. P. 9. We did likewise. We now reverse the judgment of the trial court denying
defendants’ motions to dismiss.

The Tennessee Court of Appeals has issued its opinion in Estate of Myers v. Questall, No. M2017-01954-COA-R3-CV (Tenn. Ct. App. Jul. 6, 2018). The summary from the opinion reads as follows:

Appellants appeal the trial court’s grant of summary judgment in favor of Appellee,
medical doctor. The trial court found that Appellant’s petition for declaratory judgment
sounded in health care liability and was barred by the statute of limitations. Tenn. Code
Ann. § 29-26-116(a)(1). Discerning no error, we affirm and remand.

NOTE: Health care liability actions, formerly known as medical malpractice cases, are defined by statute in Tenn. Code Ann. sec. 29-26-101(a)(1). And that definition is very broad, which this opinion points out. While lawyers are required to be creative at times to get a case in front of a jury (count me among the "creative" types), this case demonstrates that health care liability actions are set up in a way to prohibit that type of creativity, which prevents an injured person from obtaining a remedy at law a lot of times.

This interlocutory appeal involves a health care liability action. Plaintiff gave written presuit
notice of her claim to all potential defendants. See Tenn. Code Ann. § 29-26-121(c)
(Supp. 2013). Later, she filed a complaint against the same defendants. In doing so, she
relied upon the 120-day extension of the one-year statute of limitation as provided for in
Tenn. Code Ann. § 29-26-121(c). Each defendant filed a motion to dismiss. Prior to a
hearing on those motions, plaintiff voluntarily dismissed her complaint. Plaintiff
subsequently served each defendant with new pre-suit notice and later re-filed her
complaint in reliance on the one-year savings statute, Tenn. Code Ann. § 28-1-105, and
the 120-day extension pursuant to § 29-26-121(c). Defendants moved to dismiss the
second complaint. The trial court denied defendants’ motions. In doing so, the court took
“judicial notice” of the practice of some attorneys in the Second Judicial District of
providing their adversaries with “blank” authorizations. The court ultimately held that the
medical authorizations in the first pre-suit notice were not only HIPAA compliant, but
“overly” so. The trial court concluded that, because the first pre-suit notice was,
according to the court, valid, the first-filed complaint was timely filed. Upon the request
of the defendants, the court granted them permission to pursue an interlocutory appeal
pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted defendants
permission to file a Rule 9 discretionary appeal. We reverse the judgment of the trial
court and dismiss the plaintiff’s suit with full prejudice.

NOTE: As noted in this opinion, a partially blank HIPAA-compliant authorization is not HIPAA-effective because they do not contain the core elements required of medical records authorizations. However, are HIPAA-compliant authorizations even needed in such instances, or, is the sharing of a patient's protected health information allowed under HIPAA's "health care operations" provisions? See the note in my prior blog post for the answer.

This is an appeal in a health care liability action from the dismissal of the action for
Plaintiffs’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(2)(E)
when they failed to provide the Defendants with HIPAA compliant authorizations for
release of medical records. The trial court held that, as a result of the failure, Plaintiffs
were not entitled to an extension of the one-year statute of limitations for bringing suit
and the action was barred. Plaintiffs appeal. Upon our review, we find that Plaintiffs
substantially complied with the requirements of section 29-26-121 and that the
Defendants have not shown that they were prejudiced by the deficiencies in the
authorizations; accordingly, we reverse the decision of the trial court and remand the case
for further proceedings.

NOTE: This is a must-read opinion because it delves into the intricacies of presuit notice as contemplated by Tenn. Code Ann. sec. 29-26-121, and its nuances.

Also, it confounds me that the courts of Tennessee—and many lawyers—have not picked up on the fact that a defendant (or potential defendant) in a health care liability action does not have to have a HIPAA-compliant authorization to share a patient's or plaintiff's protected health information ("PHI") with other defendants and their legal counsel because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

As such, dismissal of a health care liability action because a defendant did not get a HIPAA-compliant authorization for a patient's PHI would be improper because Tenn. Code Ann. sec. 29-26-121's requirement that such an authorization be enclosed as part of a claimant's presuit notice appears to be preempted by HIPAA.

Personal injury action arising out of accident between a pickup truck and a dump truck
hauling materials for a company that paved roadways. The pickup truck driver sued the
driver of the dump truck and the paving company to recover for injuries he sustained in
the accident. The trial court granted the paving company’s motion for summary
judgment, holding that the driver of the dump truck was an independent contractor and
that the paving company was not liable for the dump truck driver’s negligence. The
injured driver appeals. Upon a thorough review of the record, we affirm the grant of
summary judgment.

NOTE: I'm afraid that this opinion overlooks applicable federal law, which is a huge omission that adversely affects the case; I strongly suspect the litigants did not bring this applicable law to the trial court's attention. Why does federal law apply in this state case? Because Tennessee has adopted the Federal Motor Carrier Safety Regulations ("FMCSRs"). 49 C.F.R. §§ 301–309, adopted pursuant to Tenn. Comp. R. & Regs. 1340-06-01-.08 via Tenn. Code Ann. §§ 65-2-102 & 65-15-113 (adopting the FMCSRs to intrastate use of commercial motor vehicles). And the FMCSRs apply to a "commercial motor vehicle," which, among other things, is a vehicle having a gross vehicle weight rating ("GVWR") in excess of 10,001 pounds. 49 C.F.R. §§ 383.5, 390.5. The dump truck in question more than likely had a GVWR in excess of 10,001 pounds, which made the FMCSRs applicable in this case. And under the FMCSRs, the operator of the dump truck, Cole, was an "employee" and Highway his "employer," 49 C.F.R. §§ 383.5, 390.5 (defining among other terms "employee" and "employer" for purposes of operation of a "commercial motor vehicle"), which could have possibly gotten the plaintiff past summary judgment as to the respondeat superior claim, or, even to a jury verdict in favor of the plaintiff. Perry v. Harco Nat'l Ins. Co., 129 F.3d. 1072, passim (9th Cir. 1997) (finding that an operator of a commercial motor vehicle was an employee and not an independent contractor as defined under the definitions contained in the FMCSRs), https://scholar.google.com/scholar_case?case=4390761991902461199&q=129+F.3d.+1072&hl=en&as_sdt=6,43